216 Mass. 44 | Mass. | 1913
As to all but the fourth item of the account annexed to the plaintiff’s declaration, it appeared that the plaintiff and the defendant made in Massachusetts executory contracts of purchase and sale. These contracts were respectively for barrels of whisky and a keg of gin. But none of them were for any specific or ascertained goods. The plaintiff, who was a wholesale liquor dealer in New York, had there several barrels of whisky and several kegs of gin. After he had made his contract with the defendant he took from his stock two barrels of whisky and a keg of gin, ascertained the amount of their respective contents from the stamps affixed by the United States revenue officers, and shipped them by a common carrier to the defendant in this Commonwealth. The defendant paid the freight on each shipment, as according to the finding of the jury he was to do.
These sales were made in New York; they do not appear to have been unlawful; and the plaintiff can recover the price thereof.
But the subject matter of the contract for the Cliffdale whisky was the specific barrel which the plaintiff had sent to New Bed-ford. The contract was made by the plaintiff himself, and not by an agent whose authority might be contested. Nothing remained to be done to this barrel but to forward it to the defendant. This was a completed sale, made in this State, and the property in that whisky passed at once to the defendant. Sales act, St. 1908, c. 237, §§ 18, 19, rule 1. The sale was forbidden by our statutes, and no action can be maintained for the price. R. L. c. 100, § 1.
There is now as to this item no help for the plaintiff in such cases as Carstairs v. O’Donnell, 154 Mass. 357, and Leisy v. Hardin,
The defendant made payments to the plaintiff “on account generally.” The plaintiff may not apply these payments to his illegal demand. Rohan v. Hanson, 11 Cush. 44. Haynes v. Nice, 100 Mass. 327, 329. Warren v. Chapman, 105 Mass. 87, 89. There was no agreement here for such application, as there was in Richardson v. Woodbury, 12 Cush. 279, and Hubbell v. Flint, 15 Gray, 550. The law will apply these payments to the lawful demands.
According to the terms of the report, judgment must be entered for the plaintiff for $28.77, with interest from the date of the writ.
So ordered.